Of course, the first version of the IRP scheme was found unlawful in two levels of court in BC. Now the case is heading to the Supreme Court of Canada. And at the same time, people who were punished under the unconstitutional law are being punished again because the OSMV has sent them notice that they must serve the balance of their driving prohibitions starting as of April 3, 2014.
Was it a trick to wait until the 30 days had expired? You might think that bearing in mind that we asked the government lawyers the direct question and received vague answers. Was it a mistake in that there is still the substantive argument to be made about the remedy for those affected by the unconstitutional law? I mean, shouldn’t that determination by the court be the trigger, bearing in mind whether one must serve the punishment all hinges on that court decision?
Was it an error that someone confused the appeal filing deadline date because of the unusual appeal limitation (60 days) to file an appeal at the Supreme Court of Canada? Nobody is stepping up to take responsibility. Moreover, even if this is the case we’d never be able to say for certain who made the call and when it happened.
The most recent, albeit still somewhat imprecise, position we have from the government is that they are of the view that whether anyone was tricked or not doesn’t matter. Whether there were agreements between lawyers doesn’t matter. Their view is that none of this matters; the only thing that matters is that you can read the order as starting the clock on April 3.
Of course, this is the argument that should have been made last week. It wasn’t. We expected counsel to seek a decision from the court on whether April 3 was the trigger date. In the end, it appears that the agreement was to not argue the case, but to consent to new orders being filed.
That almost seems reasonable, except for the timeline.
Getting a consent order agreed to in form from both parties can take a few days. Then the document needs to be filed in court. Then we wait. The wait from this point can be as short as a couple of days and sometimes it take as long as a week.
We’ve decided to set our test case down for a hearing. We’re seeking a mandamus order in another case to compel the OSMV to get moving on another matter, so we’re going to try and get them on together on the same day early next week.
Unfortunately by the time we get this on next week, more time has gone by without any real clarity for all of those people who are still being punished by an unlawful law with respect to old IRPs.
As lawyers, we wish the laws and processes were always fair. As pragmatists, we recognize that fairness is an unusual feature in the lives of humans.